Toxic Cleanup Fight Hits Montana High Court

HELENA, Mont. (CN) – Does a federal law intended to help people clean up polluted areas stop those same people from using state laws to take the cleanup a step or two further? That’s what the Montana Supreme Court will decide after hearing oral arguments Friday in a fight over the cleanup of two communities tainted by arsenic.

Acting Justice Beth Baker said the justices wanted to question the attorneys on the overlap of state and federal environmental law – in this case, the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA – and whether, as attorneys for the Atlantic Richfield Company claim, a conflict actually exists.

“This opens up an interesting question about the separation of powers. CERCLA is a law that was passed by Congress but then the court has to decide which branch of government has the role to play here. And is there a role for people outside government – in this case, the landowners?” Baker said after the hearing.

The situation centers on a contaminated area around Anaconda in western Montana where a smelter for nearby copper mines had for decades belched toxic air pollution containing arsenic and lead that settled onto the surrounding land and water. After the smelter stopped operating in 1980, the U.S. Environmental Protection Agency designated the area as a federal Superfund site in 1983.

In 1998, the EPA approved a cleanup plan for the area, part of which required Atlantic Richfield to remove and replace the top two feet of dirt if arsenic concentrations exceeded 250 parts per million within 125 feet of any home in the communities of Opportunity and Crackerville.

But it wasn’t until almost a decade later that residents learned that most properties have arsenic concentrations of at least 110 ppm, almost half exceed 250 ppm and some are as high as 1,000 ppm. They were unsatisfied with the EPA plan after learning that other cleanup operations across the nation require companies to remove soils if arsenic levels exceed just 25 to 40 ppm.

According to the U.S. Department of Health and Human Services, several studies have shown that ingestion of inorganic arsenic can increase the risk of skin, liver and bladder cancer and inhaling it can cause increased risk of lung cancer.

Since the Anaconda cleanup is still ongoing, the residents sued in 2008 for restoration damages to pay for removal of soils that have concentrations greater than 15 ppm. They argue the Montana Constitution ensures residents the right to a “clean and healthy environment,” and the Montana Supreme Court has ruled that property owners can receive damages for cleanup that exceeds regulatory agency standards.

In Friday’s hearing, Atlantic Richfield and the EPA tried to head off the lawsuit by arguing certain sections of CERCLA bar the plaintiffs’ claims for further damages. But some justices sounded skeptical.

Atlantic Richfield attorney Jonathan Rauchway said the EPA designates Superfund sites and therefore only EPA experts can establish the associated cleanup standards. He said 250 ppm was sufficient to protect human health even if it was greater than what existed in the soil prior to the smelter’s existence.

Justice Michael Wheat asked if that meant citizens have no other choice than to live with the EPA’s remedy. Rauchway said the public has its chance to question EPA standards during comment periods while cleanup plans are being written.

EPA attorney Matthew Oakes chimed in, telling the justices Section 113(h) of CERCLA doesn’t allow federal challenges to the EPA’s remedial action plans once they’re finalized. The residents’ cleanup plan was a challenge, Oakes said, because it would require additional cleanup of some properties that had already been treated.

Justice James Shea pointed out that 113(h) only addresses federal challenges in federal courts.

“How is your argument not asking us to insert ‘no federal or state’ court?” Shea asked.

Rauchway said Ninth Circuit rulings established some precedent for barring nonfederal challenges.

Other justices questioned how the landowners’ cleanup plan, which goes further than the EPA plan, could be a conflict.

Oakes said the EPA’s ability to oversee its plan could be compromised if every affected group came up with their own plan. That led into a discussion of the other CERCLA passage in question, Section 122, which requires potentially responsible parties to submit cleanup plans to the EPA.

“So what we need to do is have those plans come into the EPA so we can see exactly what it is that they’re doing and how that compares to what we’re doing,” Oakes said. “Given the general information we have here, we do know that there are some aspects of (the landowners’) plan that do conflict.”

The landowners haven’t submitted a plan to the EPA, so the only information available is a few details in court documents. Landowners’ attorney Justin Staples said they didn’t file because the landowners aren’t potentially responsible and don’t want to set themselves up to be sued as such.

“No case has ever concluded that (a party) who has not been found to contribute to contamination has been declared a potentially responsible party. And that makes sense,” Staples said. “It makes sense not to allow someone who’s responsible for a cost to go in and take action or change the setting. But it doesn’t prevent these people from excluding ARCO or its waste from their property.”

Staples said Congress barred challenges to EPA plans to prevent polluters from lowering standards, not to prevent citizens from making requirements more stringent. A number of Montana cases, including Sunburst School District No. 2 v. Texaco, have reiterated that.

“CERCLA sets the floor for environmental cleanup, not the ceiling,” Staples said. “CERCLA was designed to act in conjunction with state law requirements.”

If the justices rule against Atlantic Richfield, the company could take the case to the U.S. Supreme Court – but chances are slim the justices there would pick it up for review. Otherwise, the case goes back to the state court.

If the landowners win the lawsuit, damages would go into a trust and landowners would have to testify before a jury as to their need and intent.

Rauchway argued that if the justices rule against Atlantic Richfield, other cleanup efforts will have to be prepared for multiple claims of requirements.

“Even the state couldn’t do what the plaintiffs are trying to do,” Rauchway said. “If the remedy needs to be modified to be more protective, the EPA can do that.”